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Wright v. Tanner

United States District Court, E.D. Louisiana

August 16, 2019

ROBERT S. WRIGHT
v.
ROBERT TANNER

         SECTION: "B”

          ORDER & REASONS

         Before the Court are the Magistrate Judge's report and recommendation (Rec. Doc. 13) and petitioner Robert S. Wright's objection to same (Rec. Doc. 15). For the reasons discussed below, IT IS ORDERED that petitioner's objection is OVERRULED;

         IT IS FURTHER ORDERED that the Magistrate Judge's report and recommendation is ADOPTED as the opinion of the Court; and

         IT IS FURTHER ORDERED that the instant petition for habeas corpus relief is DISMISSED WITH PREJUDICE.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Petitioner is a convicted inmate currently incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana. See Rec. Doc. 13 at 1. On February 21, 2014, petitioner was charged by bill of information with the following six counts: disguising transactions involving drug proceeds, possession of alprazolam, possession of oxycodone, third offense possession of marijuana, being a felon in possession of a firearm, and simple burglary. See Id. at 2.

         On June 16, 2014, the State entered a nolle prosequi on the count of disguising transactions involving drug proceeds. See Id. Petitioner entered a plea of guilty to the remaining five counts. See Id. The trial court sentenced petitioner to five years for possession of alprazolam, five years for possession of oxycodone, ten years for third offense possession of marijuana, ten years for simple burglary, and twenty years without benefit of parole, probation, or suspension of sentence for being a felon in possession of a weapon. See Id. Petitioner did not seek timely appeal. See id.

         On October 28, 2014, petitioner submitted an application for post-conviction relief to the state trial court. See Id. at 3. Petitioner asserted four grounds for relief: (1) his conviction was unconstitutional because he did not have effective assistance of counsel; (2) his counsel was ineffective for advising him to plead guilty when the statute creating the offense was unconstitutional; (3) his counsel was ineffective when he failed to inspect the evidence which resulted in a conviction by ex post facto application of the law in violation of the federal and state constitutions; and (4) his sentence was excessive. See id.

         On December 2, 2014, the state trial court, citing Strickland v. Washington, 466 U.S. 668 (1984), denied relief on the first three claims. See Id. Additionally, the court held that petitioner was not entitled to post-conviction review regarding the claim of excessive sentencing, citing La. Code Crim. P. art. 930.3 and State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996). See id.

         On January 6, 2015, petitioner filed a writ application for supervisory review of the trial court's ruling with the Louisiana First Circuit Court of Appeal. See Rec. Doc. 11 at 5. On March 9, 2015, the Louisiana First Circuit denied petitioner's writ application on the ineffective assistance of counsel claims and because the excessive sentence claim was not proper for post-conviction review, citing State ex rel. Melinie. See Rec. Doc. 13 at 4. The court provided petitioner the opportunity to submit a new writ by May 8, 2015. See Id. at n. 8. Petitioner did not timely submit a new writ or timely seek review of the First Circuit's decision. See Rec. Doc. 13 at 4.

         On May 26, 2015, petitioner filed a motion to withdraw the application for post-conviction relief which was filed on October 28, 2014. See Id. The court denied this motion, reasoning that the prior application had been decided and the related writ had already been denied by the Louisiana First Circuit. See id.

         On July 27, 2015, petitioner filed a new writ application in the Louisiana First Circuit Court of Appeal, in which he brought the following two new post-conviction grounds for relief: (1) the state trial court erred in accepting the plea to the felon in possession charge because there was insufficient evidence; and (2) his counsel was ineffective for failing to investigate, call witnesses, and object to the charges and prosecutorial errors, which may have resulted in a lesser sentence or a different outcome. See Rec. Doc. 13 at 4-5. On October 5, 2015, the First Circuit denied the writ application without stated reasons. See Rec. Doc. 13 at 5.

         On May 18, 2016, petitioner submitted a writ application to the Louisiana Supreme Court, seeking review of both the trial court's December 2, 2014 ruling and the Louisiana First Circuit's October 5, 2015 ruling. See Id. On November 7, 2016, the Louisiana Supreme Court declined to consider the application because it was untimely under La. S.Ct. Rule X § 5. See State ex rel. Wright v. State, 204 So.3d 613 (La. 2016).

         On May 18, 2017, petitioner filed the instant federal petition, asserting the following two grounds for relief: (1) the state trial court erred when it accepted his guilty plea to the felon in possession charge because there was insufficient evidence; and (2) his counsel was ineffective for failing to investigate or object to the prosecutor's errors, which if done, may have resulted in a different outcome. See Rec. Doc. No. 4. In its opposition, the state asserted that the petition was not timely filed under federal law; that petitioner failed to exhaust state court review; and that the claims are without merit. See Rec. Doc. 11. Petitioner filed a reply in which he asserted that his claims should be reviewed on the merits. See Rec. Doc. 12.

         LAW AND FINDINGS

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls for purposes of this 28 U.S.C. § 2254 habeas corpus petition. See Poree v. Collins, 866 F.3d 235, 245 (5th Cir. 2017) (“Federal habeas proceedings are subject to the rules prescribed by the Antiterrorism and Effective Death Penalty Act...”); see also Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 52 ...


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